Filed 12/3/19 P. v. Meneses CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent,

v.

FRANCISCO JAVIER MENESES,

Defendant and Appellant.

G056125

(Super. Ct. No. 17NF1081)

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Gregg L. Prickett, Judge. Affirmed.

Kevin J. Lindsley, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Teresa Torreblanca, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant Francisco Javier Meneses appeals from a final judgment of conviction of various counts related to possession of a loaded firearm, a controlled substance, and paraphernalia, based on a guilty plea following the denial of a motion to suppress evidence under Penal Code section 1538.5 (all other undesignated statutory references are to the Penal Code). Meneses contends the trial court erred in denying the motion to suppress because both the investigatory detention and subsequent search that yielded the incriminating evidence were illegal. Finding no error, we affirm.

I

BACKGROUND

A. The Incident

At about 8:00 on the evening of April 15, 2017, two Anaheim police officers on patrol in their cruiser observed Meneses and another person jaywalking across Euclid Avenue, about 150 feet from a cross-walk. Meneses was more than half-way across the four-lane street when the officers noticed him. Officer David Garcia later testified there were six to eight cars traveling at approximately 35 miles per hour in each direction on Euclid where Meneses was crossing, and the traffic in both directions slowed in response to Meneses’s presence in the road.

The officers drove past Meneses, made a U-turn, and came back to conduct an enforcement stop for a violation of Vehicle Code section 21954, colloquially known as jaywalking. The officers split up to contact the two suspected jaywalkers; Officer Chavarin approached Meneses while Garcia contacted the other man.

Meneses was wearing black track pants with bulging pockets. Chavarin told Meneses to put a guitar he was holding onto the ground. Meneses complied and spontaneously informed Chavarin he was not on probation or parole and, unprompted, turned his back towards Chavarin and placed his hands behind his back. Chavarin grabbed both of Meneses’s hands with his left hand and asked Meneses, “No?” Meneses responded, “No.” Chavarin then asked Meneses, “Anything illegal on you? Hey!” Meneses answered, “Uh, no.” Chavarin used his right hand to turn Meneses around to face him and told Meneses, “Look at me.” Meneses again responded, “No sir.” Chavarin repeated his question, “Got anything illegal on you?” Meneses answered he had “a pipe,” which Chavarin understood to mean a methamphetamine pipe. Chavarin then began to search Meneses, asking Meneses if he had anything else illegal; Meneses responded he had a gun. At that, Chavarin immediately handcuffed Meneses and had him lie on the ground.

Garcia came over to assist and discovered a loaded firearm in Meneses’s left pocket and a methamphetamine pipe in his sock. Garcia removed the gun and pipe from Meneses’s person and Chavarin put Meneses in the patrol car. Garcia conducted a records check and learned Meneses was a convicted felon. Back at the station, Meneses told the officers he also had methamphetamine inside his sock.

B. Criminal Proceedings

The District Attorney filed a five-count information charging Meneses with carrying a concealed firearm (§ 25400, subds. (a)(2) & (c)(4)), being a felon in possession of a firearm (§ 29800, subd. (a)(1)), possession of ammunition by prohibited person (§ 30305, subd. (a)(1)), possession of a controlled substance while armed (Health and Saf. Code, § 11370.1, subd. (a)), and possession of controlled substance paraphernalia (Health and Saf. Code, §11364, subd. (a)). The information further alleged Meneses served three prior prison terms within the meaning of section 667.5, subdivision (b).

At his preliminary hearing, Meneses filed a motion to suppress evidence under section 1538.5. The trial court denied the motion to suppress and held Meneses to answer on all counts. The District Attorney filed an information against Meneses alleging the same offenses set forth in the complaint. Subsequently, Meneses renewed his suppression motion, which the court denied.

Pursuant to a negotiated settlement, Meneses pleaded guilty as charged and admitted the prior prison term allegations. The trial court sentenced Menses to a total term of two years in state prison.

II

DISCUSSION

Meneses contends the trial court erred in denying his suppression motion because both the initial detention and subsequent search were unlawful. We disagree. We see nothing improper in either the detention or the search at issue here.

The Fourth Amendment guarantees the right to be free of unreasonable searches and seizures by law enforcement personnel. (U.S. Const., 4th Amend.; Terry v. Ohio (1968) 392 U.S. 1, 89 (Terry); People v. Maury (2003) 30 Cal.4th 342, 384.) In reviewing the denial of a suppression motion, we defer to the trial court’s express or implied factual findings if supported by substantial evidence, but exercise our independent judgment to determine whether, on the facts found, the search or seizure was reasonable under the Fourth Amendment. (People v. Camacho (2000) 23 Cal.4th 824, 830; People v. Medina (2003) 110 Cal.App.4th 171, 175.)

Meneses begins by challenging the lawfulness of his initial detention. The Fourth Amendment permits the temporary detention of an individual for investigative purposes where the officer has reasonable suspicion supported by articulable facts criminal activity may be afoot. (United States v. Sokolow (1989) 490 U.S. 1, 7; Terry, supra, 392 U.S. at p. 30.) To “justify an investigative stop or detention the circumstances known or apparent to the officer must include specific and articulable facts causing him to suspect that (1) some activity relating to crime has taken place or is occurring or is about to occur, and (2) the person he intends to stop or detain is involved in that activity.” (In re Tony C. (1978) 21 Cal.3d 888, 893.) “‘An ordinary traffic stop is treated as an investigatory detention’” and is justifed if “‘based on at least reasonable suspicion that the driver has violated the Vehicle Code or some other law. [Citation.]’” (People v. Durazo (2004) 124 Cal.App.4th 728, 734-735; see also In re H.M. (2008) 167 Cal.App.4th 136, 142 [pedestrian’s “run across the street constituted a traffic violation for which he could lawfully be stopped”]; People v. Superior Court (Brown) (1980) 111 Cal.App.3d 948, 954 [where officer saw pedestrian commit traffic violation, officer had right and duty to detain and cite].)

Meneses argues the officers did not have reasonable suspicion to detain him for violating Vehicle Code section 21954 (jaywalking) because his conduct did not satisfy the elements of the crime. Vehicle Code section 21954, subdivision (a), provides as follows: “Every pedestrian upon a roadway at any point other than within a marked crosswalk or within an unmarked crosswalk at an intersection shall yield the right-of-way to all vehicles upon the roadway so near as to constitute an immediate hazard.” Meneses argues the statute does not prohibit a pedestrian from “crossing the street outside a crosswalk at any time . . . a motor vehicle is on [the] street.” Instead, Meneses contends, the statute merely requires a pedestrian “to exercise that degree . . . of care which usual traffic conditions of [the] thoroughfare require” and “to yield the right of way to a motorist. [Citation]”

Meneses cites People v. Ramirez (2006) 140 Cal.App.4th 849, 852, for the proposition a pedestrian crossing outside a crosswalk violates Vehicle Code section 21954, subdivision (a), only if his conduct creates “‘an immediate hazard to others on the road[.] [Citation.]’ (People v. Ramirez, supra, 140 Cal.App.4th at p. 852.)” Meneses argues his detention for jaywalking was not based on reasonable suspicion because, like the defendant in Ramirez, his crossing did not constitute an immediate road hazard.

The trial court rejected the argument, finding the officers had reasonable suspicion to detain Meneses for jaywalking. In support, the court cited a colloquy between Garcia and defense counsel in which defense counsel asserted Meneses “wasn’t creating an immediate hazard for anybody, was he.” Garcia responded: “Well, from what I recall there were cars slowing down, so I would say he probably was.” The court concluded: “[T]he officer testified [Meneses] was impeding traffic in his opinion. That’s enough for the stop.”

We agree. The officers had reasonable suspicion to detain Meneses for jaywalking upon seeing him cross the four-lane street outside a crosswalk and amid 35-mile-per-hour traffic coming from two directions that slowed in response to Meneses’s presence in the road. Consequently, the initial detention was lawful.

Meneses’s challenge to the legality of the ensuing search also lacks merit. Upon detaining Meneses for jaywalking, Chavarin asked Meneses twice if he had “anything illegal” on his person. Though Meneses aptly characterizes the questioning as “aggressive,” it was not unreasonable, given the officer’s testimony he was concerned about Meneses’s bulging pockets and also “the area” where the detention took place. Also notable was Meneses’s curious behavior in “assuming the position” (hands behind back) unprompted, as the officer approached.

In response to Chavarin’s questions, Meneses answered he had a “pipe,” which Chavarin interpreted as meaning a methamphetamine pipe, a reasonable assumption considering the nature of the question and the other circumstances we have discussed. Of course, Meneses’s admission he possessed drug paraphernalia gave the officer probable cause to arrest him for violating Health & Safety Code section 11364, subdivision (a) (possession of controlled substance paraphernalia). The right to arrest carries with it a right to conduct a search incident to the arrest for officer safety. (United States v. Robinson (1973) 414 U.S. 218, 235 [during custodial arrest based on probable cause, warrantless search of suspect is reasonable under the Fourth Amendment].) The ensuing search of Meneses’s person, which yielded not only the drug paraphernalia, but also a loaded gun and, later still, methamphetamine, was thus a lawful search incident to the arrest. We conclude the trial court properly denied the suppression motion.

 

III

DISPOSITION

The judgment is affirmed.

ARONSON, J.

WE CONCUR:

BEDSWORTH, ACTING P. J.

GOETHALS, J.